I. INTRODUCTION
‘Possession is nine-tenths of the law’, this old phrase is said to be a precept from old English Common Law and today, it is one of the most recognised and frequently used legal adages in history. However, despite its widespread use, we must ask, exactly how much truth is there to this common phrase? Is possession really nine-tenths of the law in Australian property law when determining ownership of choses in possession?
The general focus of this paper is to examine this notorious ‘possession’ adage, particularly in relation to the title or ownership of choses in possession, that is, tangible items of property. More specifically, this paper will define and analyse the true meaning of the phrase ‘possession is nine-tenths of the law’ and how it currently fits into current property law. Furthermore, this essay will examine the different categories of possession leading on to the common law of ‘finder’s keepers’ discussing competing claims of ownership and superior possessory right to choses in possession. Finally, this paper will look at the policy justifications that underscore the decisions of the law of ‘finder’s keeper’s’.
Putting all family law matters aside, possession of tangible property is rarely an issue when in the hands of its rightful and true owner. However, it is when the true owner misplaces or loses their property which is then discovered and becomes in the possession of a ‘finder’ that the issues surrounding possession and title begin to arise.
In today’s evolving law, the phrase ‘possession is nine-tenths of the law’ may be regarded as a slight exaggeration. The one who is in possession of property does have a stronger claim than someone who merely says it belongs to them, however, it is not a...
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...Tubantia (1924) P 78
Waverley Borough Council v Fletcher [1996] QB 334
Young v Hichins (1844) 6 QB 606; 115 ER 228
C. Other
Abandoned Property and the Rights of Finders, Law Teacher
Andrew Marshall, ‘Possession now ‘10 tenths’ of the law’, The Land (online), 12 October 2012
Clanad, Possession is nine-tenths of the law (24 October 2006) The Answer Bank
Keith S, Where does the phrase possession is nine-tenths of the law come from? (1 August 2011) English Language & Usage < http://english.stackexchange.com/questions/36390/where-does-the-phrase-possession-is-nine-points-nine-tenths-of-the-law-c>
Property rights can be found in the oldest laws written, and equate the expectation of use or profit to some payment from the very beginning. Modern property rights can be said to begin with the transition from ownership by entities as being the primary form of property right, to the theory that property rights are to promote th... ... middle of paper ... ... operty’ in the case of Goldberg v. Kelly to be protected. This shows the state evolving in order to protect the citizen’s rights.
Taking on Zozick’s construction of entitlement theory begs for a definition of justice, and it’s importance in this philosophical narrative. One’s liberty, that is one’s ability to do as he pleases without the persuasion or constraint of another, is the root of self-ownership (individual rights). Self-ownership also means one’s ownership over th...
The law of lost and found is rooted in ancient Roman laws and the concept of finders keepers derived from the work of the second century jurist Gaius, who suggested that unowned property (res nullius) became “the property of the first taker.” The Roman
Reece H., ‘The paramountcy principle Consensus or construct?’ [1996] 49 Current Legal Problems p. 267-304
Culver, Keith Charles. Readings in the philosophy of law. 1999. Reprint. Peterborough, Ont.: Broadview Press, 2008. Print.
Whilst this topic is particularly prevalent in the study of jurisprudence it is also of fundamental importance to legal ethics. Looking at whether I favour the positivist or natural law perspective with regards to this debate, will give a clear indication as to which of Parker’s four approaches to lawyering would be most suitable .
law as a creation of the rich, who, because of their wealth, own and control most of the property
... idea of Parliamentary Sovereignty: The Controlling Factor of Legality in the British Constitution’ (2008) OJLS 709.
An individual will gain ownership of a property by way of adverse possession if he or she fulfills the requirements established in the police force, according to the statute and they are 1. Exclusive, 2. Actual, 3. Notorious and open, 4. Hostile, 5. Continuous and, 6. Claim of right, N.Y. Real Property Actions and Proceeding Law, Chapter 81, of the consolidated law, Article 5. Adverse Possession §501 (McKinney, 2008). The possession needs to be for the prescribed period of time (ten Years). The continuity element is defined not only for a physical continuity in the possession but also by performing actions that a regular owner of a similar property will do Ray v. Beacon Hudson Mtn. Corp., 666 N.E.2d 532 (N.Y. 1996). A possession will be continues when maintenance and care of the property are done by the person that is claiming the right Estate of Becker v. Murtagh, 968 N.E.2d 433 (N.Y. 2012). A person that knows who is the rightful owner before the statutory period expire, does not have a claim of right D’Argenio v. Ashland Bldg. LLC, 910 N.Y.S.2d 550 (N.Y. Sup. Ct. 2010). In addition, N.Y. Real Property Actions and Proceeding Law, §522 (McKinney, 2008) prescribes that when is not a base in a written instrument, actions undertaken by the possessor must be sufficiently open for the owner to notice, the fact that someone acts a...
Hilary Delany (2009) – Is there a future for proprietary estoppel as we know it? Dublin University Law Journal
In this paper, I will examine Nozick’s ‘whatever arises from a just situation by just steps is itself just’ formula. By this formula, Nozick protects individuals’ absolute property rights. To examine its validity, first, I will show that Nozick’s entitlement theory relies on Kantian principle, which demands treating everyone as persons having individual rights with dignity. However, it will be clear that Kantian theory does not necessarily yield the concept of absolute property rights. Second, I will explain the principle of self-ownership, which will clarify that persons have rights over their bodies and powers. I will find the principle of self-ownership is compatible with Kantian principle. Third, I will examine Nozick’s proviso, which guides legitimate initial acquisition. However, finally, I will show that the appropriation that passes Nozick’s proviso violates the idea of respecting people as persons with dignity. In other words, Nozick’s proviso is inconsistent with Kantian principle. Therefore, Nozick’s formula fails.
-Common Law: the “law of the land”(Pool 127), which was built up over many centuries
The English legal system is ostensibly embedded on a foundation of a ‘high degree of certainty with adaptability’ based on a steady ‘mode’ of legal reasoning. This rests on four propositions
The relationship between law and morality has been argued over by legal theorists for centuries. The debate is constantly be readdressed with new cases raising important moral and legal questions. This essay will explain the nature of law and morality and how they are linked.
Leiter, Brian. Naturalizing jurisprudence: essays on American legal realism and naturalism in legal philosophy. (Oxford: Oxford University Press, 2007).